SEND in Wales - all change!

SEND law is changing is Wales. The changes were proposed back in April 2016. You can read our views at that time here.

The Additional Learning Needs and Education Tribunal (Wales) Bill was eventually passed by the National Assembly for Wales on 12 December 2017 and became an Act on 24 January 2018 after receiving Royal Assent. The inspirational sounding ‘ALN (Additional Learning Needs) Transformation Programme’ which it is said will ‘transform the separate systems for special educational needs (SEN) in schools and learning difficulties and/or disabilities (LDD) in further education, to create a unified system for supporting learners from 0 to 25 with ALN…The ALN Transformation Programme also focuses on skills development for the education workforce, to deliver effective support to learners with ALN in the classroom, as well as easier access to specialist support, information and advice. (Link to the Welsh government’s announcement of the changes at the end)

What are the changes?

There are several name changes and some similarities to the changes brought about in England by the Children and Families Act 2014:

• Statements, School Action and School Action Plus are to be replaced by a single category of ALN (equivalent to Special Educational Needs (SEN) in England)
• Additional Learning Provision (ALP) is to replace Special Educational Provision – no real change
• All children under ALN will have an Individual Development Plan (IDP) to be reviewed annually (equivalent to an Education, Health and Care Plan (EHCP) in England)
  • The IDP will go up to 25 years
  • The IDP will include health and social care needs and provision.
• Duty on local authorities (LA) to favour education at mainstream maintained schools
• The power of LAs to secure ALP at independent schools will be limited
• The draft ALN Code of Practice is similar in many ways to the new SEND Code of Practice in England

There are also other, more significant changes, the most significant of which are:

• The removal of the statutory assessment – leaving schools/FE colleges to identify ALN in place of expert assessments. If the school identifies ALN, it must prepare and maintain an IDP.
• Teacher assessment is to follow guidance in the SEN Code of Practice – this throws up concerns about assessments carried out by staff with limited qualifications to do so.
• For IDPs following teacher assessments, the duty is on the school (governing body) or FE college to secure the ALP – not the LA.
• For more complex cases, the school/FE college can refer the matter to the LA to but only if it is beyond the school’s capability or the ALP would not be reasonable for the school to secure. However, the most significant concern is that for maintained schools, the LA can send it back to the school i.e. direct the school to prepare and maintain the plan.

Maintaining the plan would presumably include organising the Annual Reviews (which many schools already do), arrange assessments as required, amend the plan and make provision. It is unclear whether there will be any additional funding for provision agreed in plans. The legislation excludes board and lodging and other ‘prescribed provision’ from the need to maintain the plan. ‘Prescribed provision’ is not explained in any further detail. This is likely to fleshed out in accompanying Regulations at a later date.

The new legislation is clearly shifting responsibility from LAs to teachers and schools.

How will the changes be implemented?

The Act will be supported by:

• Regulations – secondary legislation where further detail is required; and
• An ALN Code – statutory guidance and mandatory requirements to help people and organisations work within the law. The Code will, therefore, be a type of subordinate legislation, conferring duties and rights on those subject to it.

The government has said that they will hold public consultations into the ALN Code and draft regulations in autumn 2018. It is expected that the Code and all subordinate legislation will be in place by the end of 2019. Implementation training will be rolled out in early 2020 and the new system will be expected to go live from September in 2018, the ALN Code and regulations which support the Act will be revised, consulted on, laid before the National Assembly for Wales and published.

For the time being, LAs and all those who work with children and young people with SEN, must ensure that they continue to comply with the duties placed upon them by the Education Act 1996. They must also continue to have regard to the SEN Code of Practice for Wales (2004).

There is agreement to a phased approach over three years to implement the new system. The first to transfer onto the new plans will be those with existing statements who are approaching key points of progression e.g. secondary school transfers. Those with statements will transfer within the first two years, with a further year for learners with non-statutory plans. The government will be setting out details in a transition guide.

Children or young adults newly identified as having an ALN and requiring an IDP during the implementation period will be supported directly via the new arrangements.

The Welsh government will be investing £20m to support the implementation of the new ALN system.

Appeal rights

Where disagreements about the content or assessment for an IDP cannot be resolved at local level, the Act ensures that children and young people entitled to an IDP (and their parents in the case of those that are under 16 years) will have a right of appeal to a tribunal, the Special Educational Needs Tribunal for Wales (SENTW).

Appeals will be permitted in the following circumstances:

• A decision by the governing body in the further education sector in Wales or a LA decision as to whether a person has ALN;
• A decision by a LA as to whether it is necessary to prepare and maintain an IDP;
• The description of a person’s ALN in an IDP;
• The ALP in an IDP or the fact that the ALP is not in a plan
• The provision included in an IDP or the fact that provision under those sections is not in the plan
• The school named in an IDP or if no school is named
• A decision not to revise an IDP
• A decision under not to take over responsibility for an IDP following a request to consider doing so
• A decision to cease to maintain an IDP
• A decision that a governing body of a maintained school should cease to maintain the plan
• A refusal to decide a matter on the basis that there is no material change in need and no new information that materially affects the decision.

A new appeal right is a declaration about the child’s capacity:

• A child or a child’s parent may apply to SENTW for a declaration that the child either does or does not have the capacity to understand:
  • information or documents that must be given to a child under this Part, or
  • what it means to exercise the rights conferred on a child by this Part.

It remains to be seen how well the changes will be received in Wales. The changes in England have not all been smooth. Local authorities have struggled and the government has had to hand out additional funding several times to implement the changes. The changes in Wales seem to be more significant with a clear shift on placing responsibility on to individual schools. We do not expect the journey to be smooth.

The new Additional Learning Needs and Education Tribunal (Wales) Act 2018 can be accessed here.

You can read the Welsh government’s announcement of the changes here.

If you would like to talk about your child’s special educational needs/additional learning needs then please contact us at senexpertsolicitors@boyesturner.com – our expert SEN solicitors are here to help.